Page:Federal Reporter, 1st Series, Volume 10.djvu/79

PULLIAM V. PULLIAM. G7 �controlling in all cases. While the court should sedulousiy guard the beneficiaries against all wrongful conduct of the executor, and not allow him to take any benefit beyond a reasonable compensation fixed by the court, either directly or indirectly, he should not be so harshly dealt with by imposing penalties of interest where none is made, or could by any possible assumption of facts be presumed to have been made, as to deter prudent and responsable men from tak- ing these trusts. �Ail men are sometimes more or less negligent in their own as well as other people's affaira, and to visit these penalties upon them is calculated to drive the administration of estates into the hands of irresponsible men. I find this prinoiple running through the cases, and it does seem to me enough to hold this exeoutor liable for the principal sum lost by his negligence, without charging him with interest vrhich it is obvions he bas not made, as a fact, uor could have made under the circumstances. �On the small balance used in the payment of his debt to Trotter, and that collected since his settlement, he might be charged with interest; but it is inconsiderable in amount, and as he bas asked for no compensation, and will receive none, I shall treat those sums as too small to notice in a case of this magnitude. �Whether he should be charged with interest since the filing of the bill is another question, and I find it as perplexing as the one just considered. Generally, I do not find that the cases make any dis- tinction between a liability for interest before and after bill filed. Indeed, it is said to be a general rule that where an executor is not chargeable with interest he will not be chargeable even with costs, on the theory that the suit is necessary to liquidate his accounts and ascertain his liability. Newton v. Bennett, 1 Bro. G. C. 359, (Perkins' Ed. and notes;) 2 Williams, Ex'rs, (4th Am. Ed.) 1752; Seers v. Hind, 1 Ves. 294. Interest, except by contract, is almost purely statutory, and even at law is not allowed except as a measure of damages discretionary with the jury. As a general rulo, a court of equity does not allow interest on unliquidated demands; but when the demand bas been liquidated by the report of a master, or by a decree, it is usual to allow it from that time. Ryckman v. Parkins, 5 Paige, 543. In Moivry v. Whitney, 14 Wall. 620, 653, this princi- ple is applied in a patent case and interest allowed, not from the filing of the bill, but from the final decree, because the profits sued for were really only damages for infringement of plaintiff's rights, and were unliquidated. The court, however, carefuHy reserves the right ��� �